Old blog, social media posts can still be charged with libel in new Cybercrime Act, lawyer says; FB ‘likes’, shares could be grounds for libel, says Sen. Guingona

Even if the newly enacted Cybercrime law cannot be retroactively applied to previous violations of the measure, an IT law expert said Thursday that the persistent nature of the Internet could mean that content published before the effectivity of the law are still covered by it.

Speaking at the sidelines of the Cybercrime Forum organized by Senator Teofisto “TG” Guingona III, University of the Philippines College of Law Professor Atty. JJ Disini said victims and their lawyers could argue in court that old libelous posts still live today can be charged with online libel.

“Kasi pwede nilang sabihin na (Because it could mean) by keeping it there today, you’re still publishing it now,” Disini told InterAksyon.com “So if you’re still publishing it after the law took effect, then you’re liable for its publication today.”

Disini said that because the law is not clear on which particular acts or content online are covered by its provisions, victims could seek redress within the law and file online libel cases using old posts as evidence.

“The problem with the interim situation is that if the law is not yet clear, people will try to test its limits,” the lawyer stressed. “Chances are somebody will file, and then prosecutors will say that old content is still considered published. And eventually it’s up to the courts to make the determination, which can take years.”

Guingona, speaking at the forum, emphasized how the law gives a chilling — even sizzling — effect on online publishers, after members of the audience, which include media practitioners, bloggers, and students, realized that they would have to check their old blog and social media posts for possible violations.

“The trend worldwide today is to decriminalize libel because it has a chilling, even sizzling effect,” Guingona argued. “But instead of moving towards modernity, here we are turning the clock back to the Middle Ages.”

This is why several parties, Disini and Guingona included, sought to file petitions before the Supreme Court seeking to nullify certain contentious provisions in the law, which includes the online libel provision.

But while implementing agencies such as the Department of Justice and the National Bureau of Investigation can provide safeguards in the Implementing Rules and Regulations (IRR) of the law to clarify its vague provisions, Disini said amending the law or striking out the clauses in question is still the better option.

“The problem with an IRR is that it can be easily amended by the implementing agencies,” Disini explained. Laws, meanwhile, would need to be deliberated and approved in Congress before being amended. “Ibig sabihin, kapag may nag-iba lang ‘yung takbo ng utak, pwedeng maiba na iyong IRR (It means, if someone simply changes his mind, it could change the IRR).”

The Cybercrime Prevention Act technically takes effect on October 3, or after 15 days it was published in the papers and on the Official Gazette on September 18. The law was signed by the President on September 12.

Even without an IRR, Disini said parties can already file suits against cybercrime offenses and the DOJ would not have a choice but to act on it.

The Information and Communications Technology Office (ICTO) is already looking for private sector and academe members that will form the Cybercrime Investigation and Coordinating Center (CICC), a body tasked to draft the IRR of the law.

The DOJ has already set an initial meeting with stakeholders to draft the IRR on October 9.

Sharing content, or even just clicking the ‘Like’ button on Facebook, may be grounds for libel under the recently enacted Cybercrime Prevention Act. But Senator Teofisto Guingona III said Thursday the law is so broad and vague it isn’t clear who can or should be sued.

“The law is very broad,” Guingona, who opposes the new law, said. “If you click like, you can be sued, and if you share, and continuously re-share information, you can also be sued. Saka sino ang liable? Hindi klaro eh. ‘Yung original na nag-post? ‘Yung nag-share? ‘Yung nag-tweet? Kahit nga ikaw, mag-post ka ng simpleng ‘hehehe’ di ba? Ibig sabihin nu’n, sangayon ka (And who is liable? It isn’t clear. The one who made the original post? The ones who share? The ones who tweet. Even you, if you post a simple, ‘hehehe,’ right? Does that mean you agree)? Are you liable? So, napakalawak eh.”

Guingona also described the law as “unrealistic” and difficult to enforce.

But the bottom-line, he said, “on its face, it is unconstitutional,” which is why he filed before the Supreme Court on Thursday a petition asking it to declare void “questionable” provisions of the Cybercrime Prevention Act that infringe on freedom of speech and of expression, among these the inclusion of libel among punishable crimes.

Guingona acknowledged that the country needs an anti-cybercrime law but said the one enacted could easily be used to suppress people’s rights.

“Without a clear definition of the crime of libel and the persons liable, virtually any person can now be charged with a crime even if you just like, re-tweet or comment on an online update or blog post containing criticisms,” he said.

He also said the harsher penalty for “cyber-libel” — up to 12 years’ imprisonment compared to the four years and two months for libel committed in print — would demonize technology.

Aside from this, Guingona said the new law violated the constitutional guarantee against double jeopardy by making it possible for a person to be sued both under the Cybercrime Prevention Act and the Revised Penal Code.

Guingona said he is confident the Supreme Court will rule in his favor even as he urged netizens to join the protest against the Cybercrime Prevention Act.

Even if the high court rules for his petition, Guingona said he would still seek a review of the law.

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